SECOND SECTION

DECISION

Application no . 39307/11 Izabel SKOKANDIĆ against Croatia

The European Court of Human Rights (Second Section), sitting on 23 August 2016 as a Chamber composed of:

Işıl Karakaş , President, Julia Laffranque , Nebojša Vučinić , Paul Lemmens, Ksenija Turković , Jon Fridrik Kjølbro , Stéphanie Mourou-Vikström , judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 7 June 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Izabel Skokandić , is a Croatian national who was born in 1965 and lives in Žrnovo . She was represented before the Court by Mr I. Surjan , a lawyer practising in Zagreb.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Å . Sta ž nik .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 19 April 2004, after obtaining all the relevant permits from the competent domestic authorities, the applicant applied to the Korčula Office of the Dubrovnik State Administration ( Ured državne uprave u Dubrovačko-neretvanskoj županiji , Ispostava u Korčuli , hereinafter “the Kor č ula Office”) for a permit for the construction of a house in Žrnovo .

5. On 3 August 2004 the applicant was granted a construction permit, and this decision became final on 26 August 2004.

6. During the building work, on 24 May 2005, a building inspector of the Ministry of Ecology, Spatial Planning and Construction ( Ministarstvo zaštite okoliša , prostornog uređenja i graditeljstva , hereinafter “the Ministry”) carried out an on-site inspection and, after examining the construction permit, found no irregularities in the work.

7. On 21 June 2005 a certain M.C. asked the Ministry to carry out a further inspection of the applicant ’ s construction work and her construction permit.

8. On 11 July 2005 the construction inspector requested the Ministry to revoke the applicant ’ s construction permit. He considered that the construction permit had not been properly issued, as it allowed construction in excess of the maximum limit of construction on a single plot of land. The inspector also considered that the construction of a flat roof as authorised by the construction permit would not be permissible under the relevant spatial planning regulations.

9. On 17 August 2005, on the basis of its supervisory review powers, the Ministry revoked the applicant ’ s construction permit on the grounds that the construction permit had not been issued in accordance with the relevant construction regulations.

10. The applicant challenged this decision before the Administrative Court ( Upravni sud Republike Hrvatske ) on 26 September 2006, arguing that she had lawfully obtained a construction permit, which had become final and enforceable. The applicant considered that the revocation of the permit was an abuse of powers by the construction inspector, and that there had been no legal grounds to revoke the construction permit for the reasons cited by the Ministry.

11. On 16 May 2007 the Administrative Court dismissed the applicant ’ s administrative action on the grounds that it appeared from the available evidence that the applicant ’ s construction permit had been issued contrary to the relevant construction regulations.

12. On 5 October 2007 the applicant lodged a constitutional complaint before the Constitutional Court ( Ustavni sud Republike Hrvatske ), contending that by the revocation of the construction permit the status of her property had become precarious as, although the house could not be demolished, she could never obtain a residential use permit, which was a further permit to be obtained as a necessary condition for a fully lawful use of house. She also considered that she had been made to bear an excessive individual burden as a construction investor.

13. On 25 November 2010 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible as manifestly ill-founded.

14. On 28 March 2013, following the enactment of the Unlawful Construction Act ( Zakon o postupanju s nezakonito izgrađenim zgradama , Official Gazette no. 86/2012), which provided for the possibility of legalisation of unlawful constructions, the applicant requested legalisation of the construction status of her house.

15. In support of that request she submitted a new architect ’ s plan, for which she paid 15,000 Croatian kunas (HRK; approximately 1960 euros (EUR)). In addition, the Korčula Office ordered her to pay the legalisation fees in the amount of HRK 500 (approximately EUR 60).

16. On 23 October 2014 the Korčula Office granted the applicant ’ s request and authorised legalisation of her construction.

B. Relevant domestic law and practice

1. Relevant domestic law

(a) Constitution

17. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:

Article 48

“The right of ownership shall be guaranteed ...“

(b) Construction Act

18. The relevant provisions of the Construction Act ( Zakon o gradnji , Official Gazette nos. 175/2003 and 100/2004) read:

Section 84

“(1) Construction may commence only on the basis of a final construction permit ... ”

Section 177

“(1) If an administrative inspection or an inspection conducted by a construction inspector finds that the issuing of a construction permit ... which [is] final ... manifestly breached the substantive provisions of this Act, the Ministry shall revoke that permit on the basis of its supervisory rights ... ”

Section 178

“A decision on revocation based on the [Ministry ’ s] supervisory rights may be issued within one year of the date of finality of the act being revoked.”

(c) State Administration System Act

19. The relevant provision of the State Administration System Act ( Zakon o sustavu državne uprave , Official Gazette nos. 75/1993, 92/1996, 48/1999, 15/2000, 127/2000, 59/2001, 190/2003, 199/2003 and 79/2007), as in force at the material time, read as follows:

Section 13

“Damage caused to a citizen, legal entity or any other party by an illegal or improper act on the part of a State administration body, local administration body or any legal entity with public powers in the exercise of its authority shall be redressed by the Republic of Croatia.”

20. The same provision is contained in section 14 of the amended State Administration System Act (Official Gazette nos. 150/2011 and 12/2013).

2. Relevant practice

21. In decision no. U-III-2314/06 of 21 February 2007 the Constitutional Court stressed:

The Constitutional Court points out that the State Administration System Act establishes a system of responsibility of the State on the basis of the principle of causality ( causa) and not on the basis of guilt ( culpa ).

The primary and immediate responsibility of the State for damage caused by an illegal or improper conduct on the part of a State administration body or a legal entity with public powers is an expression of the principle of rule of law as one of the highest values of the Croatian constitutional order set out in Article 3 of the Constitution.”

22. On 13 February 2008, in decision no. U-III-822/2005, the Constitutional Court further stated by way of clarification:

“[Section 13] provides for primary and immediate responsibility of the Republic of Croatia irrespective of the level of governance (state, county, municipality or legal entity with public powers) at which damage has been caused by illegal or improper conduct. Such a responsibility of the State, which was also accepted in judicial practice (see Supreme Court decision no. Rev-903/03-2 of 4 January 2005), is an expression of the rule of law as one of the highest values of the Croatian constitutional order set out in Article 3 of the Constitution. The Constitutional Court points out that the State Administration System Act establishes a system of responsibility on the basis of the principle of causality and not on the basis of guilt ( culpa ).”

23. The Government provided a judgment of the Rijeka Municipal Court ( Op ć inski sud u Rijeci ), no. P-4553/11 of 30 March 2012, final on 27 February 2014, by which, on the basis of the Constitutional Court ’ s case-law (see paragraphs 21-22 above), a civil action was allowed and damages awarded under section 13 of the State Administration System Act for the local administration ’ s errors in authorising a construction permit.

COMPLAINT

24. The applicant complained that the revocation of a construction permit for the construction of her house had breached her right to the peaceful enjoyment of her possessions under Article 1 of Protocol No. 1.

THE LAW

25. Complaining of a breach of her property rights, the applicant relied on Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. The parties ’ arguments

1. The Government

26. The Government submitted that the applicant could not claim to be the victim of a violation of her property rights, as there had never existed a risk that her house could be demolished, and she had eventually obtained all the relevant permits and thus fully legalised the construction status of her house. The Government further contended that the applicant had failed to properly exhaust the domestic remedies. In particular, they submitted that the applicant had failed to lodge a civil action for unlawful or improper conduct of the administrative authorities concerning their errors when issuing the construction permit.

27. The Government also stressed that Article 1 of Protocol No. 1 was not applicable and that there had been no interference with the applicant ’ s property rights. In any event, in the Government ’ s view there had been no violation of the applicant ’ s property rights.

2. The applicant

28. The applicant maintained that she had been a victim of a violation of her property rights related to the domestic authorities ’ unjustified revocation of the final construction permit, which first rendered the construction of her house unlawful and afterwards engendered further expenses for the legalisation of the construction status of her house. The applicant also argued, without providing any further relevant substantiation for her submission, that she had properly exhausted the domestic remedies.

B. The Court ’ s assessment

29. The Court finds that it is not necessary to address all the Government ’ s objections, as the applicant ’ s complaint is inadmissible for the following reasons.

30. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with an application after all domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to call on the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others , §§ 70-71, 25 March 2014, and Gherghina v. Romania ( dec. ) [GC], no. 42219/07, § 85, 9 July 2015).

31. The Court notes in the case at issue that the competent authorities including the Administrative Court found that the applicant ’ s construction permit of 3 August 2004 had been issued contrary to the relevant construction regulations and could not therefore be maintained (see paragraphs 8-9 and 11 above). In view of the fact that it is primarily for the domestic authorities to interpret and apply the relevant domestic law, and in the absence of any arbitrariness capable of raising an issue under the Convention, the Court sees no reason to doubt these findings of the competent administrative authorities.

32. The findings of errors in the issuing of the construction permit of 3 August 2004 indicated improper conduct on the part of the local authority which delivered the construction permit in question. This arguably opened an avenue for the applicant under section 13 of the State Administration System Act to claim compensation for any damage she might have sustained as a result of the revocation of the improper construction permit. ( see paragraphs 18 and 19 above). Such damage could be claimed before the courts of civil jurisdiction as the scope of assessment of the Administrative Court was aimed solely at the examination of validity of the decisions concerning the revocation of the applicant ’ s construction permit.

33. In view of the evidence available before the Court (see paragraphs 21-23 above), it follows that, in the particular circumstances of the present case, the legal avenue under section 13 of the State Administration System Act was sufficiently available and certain both in theory and practice, and thus constituted an accessible and effective legal remedy (see paragraph 30 above). This is particularly true in view of the fact that the applicant eventually obtained the legalisation of the construction status of her house (see paragraph 16 above), which, together with the possibility of award of damages under 13 of the State Administration System, could have provided for a full restitution of the impugned situation created by the erroneous delivery of the construction permit of 3 August 2004.

34. However, the Court notes that the applicant failed to avail herself of the opportunity available to her under section 13 of the State Administration System Act, without providing any reasons which could justify her omission to use that legal avenue. The Court therefore finds that the applicant failed to exhaust the available and effective legal remedies.

35. Accordingly, the applicant ’ s complaints should be declared inadmissible for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 September 2016 .

             Stanley Naismith Işıl KarakaÅŸ Registrar President